In Re As

38 S.W.3d 478
CourtMissouri Court of Appeals
DecidedFebruary 28, 2001
Docket23563
StatusPublished
Cited by7 cases

This text of 38 S.W.3d 478 (In Re As) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re As, 38 S.W.3d 478 (Mo. Ct. App. 2001).

Opinion

38 S.W.3d 478 (2001)

In the Interest of A.S. and N.J.S., Minors.
L.M., Appellant,
v.
Barton County Juvenile Office, Respondent.

No. 23563.

Missouri Court of Appeals, Southern District, Division Two.

February 28, 2001.

*480 James V. Nichols, Nichols & Nichols, Lamar, for Appellant.

Gary Ratzlaff, Lamar, for Respondent.

Belinda S. Elliston, Kaderly & Kaderly, for Guardian Ad Litem.

BARNEY, Chief Judge.

L.M. ("Mother") appeals from a judgment of the Circuit Court of Barton County, Juvenile Division, ("juvenile court") terminating her parental rights to A.S., a male child born September 26, 1991, and N.J.S., a female child, born September 21, 1989. The juvenile court also terminated the parental rights of K.S., father of the two minors ("Father"). He does not appeal.

The juvenile court based its judgment on two grounds for termination: section 211.447.4(2), abuse and neglect; and section 211.447.4(3), failure to rectify or to remedy.[1]

Mother raises three points of juvenile court error. She first complains that the juvenile court's apparent finding that Mother engaged in "severe act[s] or recurrent acts of physical and emotional abuse toward the children" was against the weight of the evidence. In her second point, Mother maintains that the juvenile *481 court's finding that the children had been under its jurisdiction for a period of over one year and the conditions which led to the assumption of jurisdiction still persisted was against the weight of the evidence. In her third and final point, Mother asseverates that the juvenile court's decision that terminated her parental rights was in the best interest of the children was also contrary to the weight of the evidence.

"On review, we will affirm the juvenile court's judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law." In re S.L.N., 8 S.W.3d 916, 920 (Mo.App.2000). In reviewing the juvenile court's decision, "an appellate court views the evidence and its reasonable inferences in a light most favorable to the decision." In re N.M.J., 24 S.W.3d 771, 777 (Mo.App.2000)(quoting In re A.H., 9 S.W.3d 56, 59 (Mo.App.2000)). An appellate court also defers to a juvenile court's ability to determine the witnesses' credibility and to choose between conflicting evidence. Id. "[E]vidence in the record that might support another conclusion does not necessarily establish that the trial court's decision is against the weight of the evidence." R.L.P. v. R.M.W., 775 S.W.2d 167, 170 (Mo.App.1989).

The genesis of this case was a child abuse hot line call regarding A.S. and N.J.S. and received by the Barton County DFS on April 2, 1997. At that time, the children were in the physical custody of Father, living with him and their stepmother in Golden City, Missouri.[2] Mother was then living with her boyfriend's parents in Mindenmines, Missouri. After an investigation, DFS determined that the children had been subjected to physical abuse by Father and stepmother, and the children were removed from Father and stepmother's household and taken into the care and custody of DFS. The children were then placed in the foster care of their paternal grandmother, ("V.S.U."), who resided in Mindenmines, Missouri. At the time of their removal from Father's physical custody, Mother agreed to the children's physical placement with V.S.U.

Point I.

Mother's first point on appeal relates solely to the juvenile court's apparent finding, pursuant to section 211.447.4(2) that she had a role in the physical abuse of the children. She solely contends that "there was no evidence that Mother had ever abused or permitted abuse of the children...." Respondent County Juvenile Office ("Respondent"), virtually concedes this point as written by Mother.

However, in reviewing the juvenile court's findings pursuant to section 211.447.4(2)(a)-(d), discussed infra, we find that the juvenile court also found Mother inadequate under (d), which relates to a parent['s] failure to provide a child with "adequate food, clothing, shelter or education as defined by law, or other care and control necessary for the child's physical, mental, or emotional health and development." This finding was not challenged by Mother in her first point.

Under section 211.447.4(2), one of the possible grounds for termination is if a child has been "abused or neglected." In making this determination, the juvenile court is required to "consider and make findings" on four "conditions or acts of the parent":

(a) A mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed and which renders the parent *482 unable to knowingly provide the child the necessary care, custody and control;
(b) Chemical dependency which prevents the parent from consistently providing the necessary care, custody and control of the child and which cannot be treated so as to enable the parent to consistently provide such care, custody and control;
(c) A severe act or recurrent acts of physical, emotional or sexual abuse toward the child or any child in the family by the parent, including an act of incest, or by another under circumstances that indicate that the parent knew or should have known that such acts were being committed toward the child or any child in the family; or
(d) Repeated or continuous failure by the parent, although physically or financially able, to provide the child with adequate food, clothing, shelter, or education as defined by law, or other care and control necessary for the child's physical, mental, or emotional health and development....

§ 211.447.4(2)(a-d).

While the primary concern in any termination case is the best interests of the child, the juvenile court may reach the issue of the best interests of the child only after it has made a determination that one or more of the statutory grounds for termination exists. In re S.L.N., 8 S.W.3d at 920. A juvenile court may terminate parental rights when the termination is in the best interest of the child and it appears by clear, cogent, and convincing evidence that one or more of the grounds for termination under section 211.447 exists. In re C.M.D., 18 S.W.3d 556, 560 (Mo.App.2000). "Clear, cogent and convincing evidence in an action for the termination of parental rights is evidence that instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true." In re N.M.J., 24 S.W.3d at 777. However, "[t]his test may be met despite the presence of contrary evidence before the court." Id. We are mindful that due regard is given the opportunity of the juvenile court to judge the credibility of the witnesses. In Interest of D___L___C___, 834 S.W.2d 760, 761 (Mo.App.1992).

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Bluebook (online)
38 S.W.3d 478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-as-moctapp-2001.